Appeal against the decree tertiary : the Council of State, the party is tight

SUSPENSE. On the 6th of July, at a hearing with the State Council, the ministry of the ecological Transition and the associations opposed to the decree “tertiary” have made their arguments to the judge. The decision should be made on the 10th or the 11th of July 2017.
Under the gaze and the fire of questions by Bertrand Dacosta, a member of the Council of State, each camp has in turn advanced his pawns. On 6 July, an audience brought together well to one side of the federations of trade and hotels (1), which requested the suspension of the decree tertiary, and the other the ministry of the ecological Transition, and solidarity. The issue : the possible suspension of the pane of the text that relates to the objectives of energy savings for commercial buildings of over 2,000 m2. These are set at 25% by 2020 and 40% by 2030. At the end of the exchanges, the judge announced that he would make a decision on the 10th or the 11th of July 2017.


As a reminder, last week, a first part of this text has been suspended by an order of the council of State (a decision that, for Philippe Pelletier du Plan bâtiment durable, was, however, a “storm in a glass of water”).


Waiting for the verdict, Batiactu you come back on the main points between the two parties, and which will form the basis of the reflection and the decision of the judge Bertrand Dacosta.


The text is it legal ?


According to the article 111-10-3 of the Code of construction and urban planning (CCH), the order of tertiary was to be published “at least five years before its entry into force”. However, it was released on may 10, 2017, which is a little over two years and a half before the first deadline (2020). “We need to leave time and do not give any binding value to 2020”, has said a spokesman of the shops in France.


The question of the criterion of urgency


Even if the obligation shall be 2020, for the complainants, the obligation which is imposed would have immediate consequences for the managers of the 59 million m2 of tertiary buildings concerned. They believe that if one takes account of the different stages (audit, obtaining permissions, work…) of the implementation of a project of energy renovation, the work should start immediately. “In reality, the delay is not, therefore, of two and a half years, but a few months”, detailed the Board of trade of France. The ministry has reminded, that the energy savings already achieved in recent years would be taken into account in the calculation of the 25% [a proposal that does not satisfy the federations, see below].


In commercial buildings, very different from each other


If this text is to be suspended, for the complainants, it is also because it modulates not the obligations of energy savings, depending on the type of building. A hotel does not face the same problems as a large area in the control of its consumption, for example, because the behavior of the customers of a hotel is hard to control. “A ratio of 1 to 20 can exist between two tertiary buildings”, have so asserted in concert with the federations. The ministry has also ensured that this modulation was a matter of common sense, and that it should be present in the implementing decree which is still not published.


No release date for the order tertiary


The decree complained of provides that a by-law to come to provide such a quantified target for energy savings expressed as an absolute value of primary energy (and not as a percentage, such as 25%). In the absence of this order, the associations complain about the fact that they are not able to choose one of these two thresholds. However, for certain types of buildings, one may be more interesting, less expensive, easier to reach than the other. The ministry spokesperson has confirmed to the judge that he could not give any date for the publication of this order, and therefore the information it contains (including the threshold expressed as an absolute value, and the modulation of the targets according to the type of building).


This silence is probably the most problematic in the defence ministry. In effect, how to apply a text if some of its steps are not yet known, two and a half years before the maturity date ? This point has obviously been the subject of particular attention from the judge.


The objectives are they really achievable ?


According to the ministry of the ecological Transition and solidarity, the 25% savings for 2020 are achievable without large work (this is also the opinion of Philippe Pelletier du Plan bâtiment durable). It is also argued that some retailers have already made efforts in energy efficiency, and that it will be taken into account in the calculation of the 25%.


An argument in which the federations complainants responded with two observations. On the one hand, they claim to have difficult to quantify the amount of investments made in recent years in terms of energy efficiency – argument unconvincing, to the extent where the only variable is interesting in this case is the energy savings actually produced, not the cost that they have represented.


Another argument advanced by the sector of large surfaces : it states that its members, in a few years, have already made significant progress, rising from an average of 650 kWh/m2/year consumption 540 kWh/m2/year. “The margin of progress that remains for us is so limited,”says the FPS. And the investments that should be made to reach this famous threshold of 25% would be much more expensive than their marginal effectiveness would be tenuous. Difficult, therefore, to achieve a rapid return on investment.


The question of the return on investment


According to the ministry, two safeguards are provided for in the decree : on the one hand, it is stated that the work of the energy savings must be amortized over five years ; on the other hand, they must not exceed 200 € /m2. But the federations are not convinced by the credibility of these figures. They rely as well on the impact study carried out by the ministry itself, which indicates that the cost of the measure over the next three years, will be of 6.19 billion euros, for a gain on the bill of 1.37 billion euros. The difference between the cost of operations and what they report would be too big for amortization over five years is possible. The decree would thus be, in its very principle, unenforceable.


“We want a schedule, we want to review the conditions of these obligations”, has summary a spokesman for the federations. “These energy-efficient renovation work will be done, but the objectives must be reasonable.”


(1) The Board of trade of France (Fps), the association Perifem and the Union des métiers et industries de l’hotellerie (Umih).

Leave a Reply